Friday, January 25, 2013

In previous posts this blog has looked at the issue of "standing" - i.e., who is a proper party in interest to take an appeal of lower court rulings - as well as the Supreme Court's engagement of Harvard Law professor Vicki C. Jackson to brief the issue of standing in both the Proposition 8 appeal and in the DOMA appeal brought by the GOP members of the House of Representatives. The issue of standing is important in both cases since, if the appellants lack standing, the U. S. Supreme Court could side step both cases and leave the lower court rulings striking down Prop 8 and DOMA in place. The result of this would be that (i) Prop 8 is dead and gay marriage is legal once again in California and arguable in the other states in the 9th Circuit, and in the DOMA appeal centering on Edie Windsor (pictured at left) brought by the House GOP, the result would be that DOMA is unconstitutional in the 1st and 2nd Circuits.

Today, professor Jackson filed her amicus brief in the DOMA appeal and, not surprisingly, found (a) that the Supreme Court lacked jurisdiction given the posture of the case and (b) the the House GOP lacked standing to defend a rulint in which the executive branch has acquiesced. In short, if the justices on the Supreme Court desire to duck making a ruling, Prof. Jackson has given them a road map of how to do so. Should the Court take this avenue, the good news is that Barack Obama will likely have the opportunity to appoint new liberal justices before the next gay marriage and/or DOMA appeal to the U. S. Supreme Court. The other irony would be that the GOP House members just squander $3 million in legal fees for absolutely nothing. The bad news is that many of us will definitively remain second class citizens for the near future. Here are details from SCOTUS Blog:

The Supreme Court does not have the power to rule on the case the Justices have agreed to review on the constitutionality of the federal Defense of Marriage Act of 1996, a Harvard law professor argued in a brief filed Thursday evening. The professor, Vicki C. Jackson, also argued against letting the Republican members of the House of Representatives’ leadership defend DOMA’s validity, saying they do not speak for Congress, or even for the House.

If the Court accepts this advice, it probably would miss its chance to rule during the current Term on DOMA’s Section 3, which defines marriage for all federal purposes as the union of one man and one woman. It has been challenged by same-sex couples who are legally married, as they seek the federal benefits at issue. There is not time, in the remaining months of the Term (unless the Court would really rush things), for review of another DOMA case, even though others are pending.

The Court on December 7 agreed to review the constitutionality of Section 3 in the case of United States v. Windsor (docket 12-307). At the same time, however, it added questions about its authority to do so and then invited Professor Jackson to argue two points: One, whether the Obama administration can appeal a case that it won in a lower court (it believes DOMA is unconstitutional, and the lower court ruled that way). And, two, whether the House’s three GOP leaders could satisfy the Constitution’s Article III requirement that they have a legal right to be DOMA’s defenders in court.

The question about the administration’s stance is one of judicial power: if the Court lacks that basic power to decide, it cannot resolve the constitutional question in response to the government’s appeal. The question about the House GOP is one of “standing,” in a constitutional sense, to appeal: if those legislators cannot show they had real legal interests at stake, they could not be in court.

While the Court has also agreed to review the constitutionality of California’s “Proposition 8,” a statewide ban on same-sex marriage, the Court also raised a question of whether it could rule on that case. It posed the question of whether the sponsors of the “Proposition 8″ ballot measure had “standing” to appeal, under Article III. (That will be debated between those proponents and the two same-sex couples who successfully challenged that measure in lower courts. That was not within the assignment the Court gave to Professor Jackson, which was limited to the DOMA case.)

If it turns out that the California proponents are found to lack the right to pursue their appeal, that case, too, could be ended without a ruling by the Justices on the validity of that state’s marriage ban.

If the GOP House members are found to lack standing, they ought to be required to reimburse the wasted $3 million. A plain reading of Article III of the Constitution clearly suggests the the GOP House members never had the right to appeal the 1st and 2nd Circuit DOMA rulings.

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Out gay attorney in a committed relationship; formerly married and father of three wonderful children; sometime activist and political/news junkie; survived coming out in mid-life and hope to share my experiences and reflections with others.
In the career/professional realm, I am affiliated with Caplan & Associates PC where I practice in the areas of real estate, estate planning (Wills, Trusts, Advanced Medical Directives, Financial Powers of Attorney, Durable Medical Powers of Attorney); business law and commercial transactions; formation of corporations and limited liability companies and legal services to the gay, lesbian and transgender community, including birth certificate amendment.

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